L. F. Pace & Sons, Inc. v. Travelers Indemnity Co.

514 A.2d 766, 9 Conn. App. 30, 1986 Conn. App. LEXIS 1123
CourtConnecticut Appellate Court
DecidedSeptember 2, 1986
Docket3491
StatusPublished
Cited by142 cases

This text of 514 A.2d 766 (L. F. Pace & Sons, Inc. v. Travelers Indemnity Co.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 514 A.2d 766, 9 Conn. App. 30, 1986 Conn. App. LEXIS 1123 (Colo. Ct. App. 1986).

Opinion

Bieluch, J.

The defendant appeals, and the plaintiff cross appeals, from the judgment of the trial court after a jury verdict for the plaintiff in this action for the bad faith breach of an implied contract to act as surety on construction performance and payment bonds. The jury returned a verdict for the plaintiff in [32]*32the total amount of $340,843 for compensatory and punitive damages. The defendant claims, in its groupings of issues, that the trial court erred: (1) in denying the defendant’s motion to set aside the jury verdict; (2) in denying the defendant’s motion for judgment notwithstanding the verdict; and (3) in instructing the jury with respect to promissory estoppel. The plaintiff’s cross appeal claims error in the trial court’s denial of his postverdict motion for interest on the jury’s awards for compensatory and punitive damages. We find no error.

The jury could reasonably have found the following facts. The plaintiff corporation was a general contractor engaged almost exclusively in public construction. The defendant is a specially chartered insurance corporation licensed to do business as a surety company. On December 14,1973, the parties entered into a General Agreement of Indemnity “whereby the plaintiff agreed to indemnify and save the defendant harmless from and against every claim, cost, judgment and expense caused to the defendant as a consequence of issuing surety bonds for and on behalf of the plaintiff.”1 Thereafter, the defendant issued bid bonds, as well as payment and performance bonds,2 on application of the plaintiff in connection with various public construction [33]*33projects. These bonds were issued through Vincent J. Fazio, an authorized attorney-in-fact of the defendant. Fazio was associated with the Vin Agency, Inc., an insurance agency located in Bridgeport.

After May, 1974, the defendant became concerned about the plaintiffs financial condition. On September 6,1974, the defendant wrote a letter to Fazio stating that “[o]ur concern has reached the point where we wish to call a moratorium on issuing any further bonds (bid or performance) until we have had an opportunity to review additional information which [we] requested that you furnish to us.” (Emphasis added.) Following a meeting of the parties in late September, the defendant placed a restriction on the parameters of Pace’s construction bids, limiting Pace to projects of six or seven hundred thousand dollars per bid.

On June 27, 1975, the defendant issued a bid bond, through its agent Fazio. This bond was to be attached by the plaintiff to its proposal to construct senior citizens housing for the town of Trumbull at a cost of $625,000. This bid was accepted by the town. Fazio previously had assured the plaintiff that the requisite payment and performance bonds would follow if the contract were awarded to it. When informed of the prospective award of the project to the plaintiff, the defendant advised Fazio that it was refusing to issue performance and payment bonds for the project. Unable to obtain substitute bonding, the plaintiff lost the Trumbull contract. Pursuant to the bid bond furnished by the plaintiff, Trumbull made claim against the defendant for $5003, the spread between the Pace proposal and the next lowest bid. Although the defendant paid the claim and demanded indemnification from the plaintiff’s principals under the blanket agreement of December 14, 1973, it never took legal recourse to obtain reimbursement. The plaintiff thereafter was unable to obtain supporting bonds necessary for obtain[34]*34ing public construction contracts. Consequently, it was unable to obtain any new contracts. The plaintiff continued in business until 1979, when it ceased all operations.

The plaintiff commenced this action on February 22, 1977. In the first count of its substitute complaint, Pace sought compensatory damages for breach of an implied contract. The second count claimed compensatory damages for breach of an implied contract that the defendant allegedly was estopped to deny. Punitive damages were demanded in the third count on the ground that the defendant breached its implied contract in bad faith and “acted outrageously and maliciously toward the plaintiff with willful disregard for plaintiffs rights under the terms of its implied agreement with the plaintiff, and with the intention of causing [the plaintiff] severe economic and financial loss.”

After trial, the jury made the following responses to interrogatories as the basis for its verdict: (1) Under its first count, the plaintiff proved the existence of an implied contract which obligated the defendant to issue as surety performance and payment bonds for the Trumbull project; (2) under the second count, the defendant was estopped to deny its obligation to issue as surety performance and payment bonds for the Trumbull construction; (3) the plaintiff’s loss of profits on the Trumbull contract was $47,860; (4) the plaintiffs failure to obtain payment and performance bonds from the defendant resulted in its going out of business and causing it damages of $224,815; and (5) because the defendant acted in bad faith, the plaintiff was entitled to punitive damages of $68,168.

The defendant filed a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. The plaintiff, in turn, filed a motion seeking an award of statutory interest on the compensatory dam[35]*35ages awarded by the jury on the first two counts. All three motions were denied by the court and judgment was rendered upon the jury verdict.

The defendant’s first two claims of error3 challenge the denial of the motion to set aside the verdict and the denial of the motion for judgment notwithstanding the verdict. The defendant proposes several grounds in support of its claims.

I

Construction of the Indemnity Agreement

The defendant’s first argument challenges the trial court’s interpretation of the General Agreement of Indemnity executed on December 14,1973. The defendant asserts that paragraph nine of the indemnity agreement belies any claim of an implied contract to issue performance and payment bonds. That paragraph authorizes the defendant, “at its option [to] decline to execute or participate in, or procure the execution of, any such bonds without impairing the validity of this General Agreement of Indemnity.” The trial court had dismissed this argument as a matter of law by ruling that while the defendant was free to refuse to issue any bid bond, once it chose to issue a bid bond there arose an agreement, implied in fact, that Travelers would issue the necessary performance and payment bonds.4 [36]*36The trial court refused to interpret paragraph nine of the agreement to “give the defendant carte blanche to avoid those undertakings it became obligated to perform.” The court instructed the jury that it could use custom and usage to determine each party’s obligations under an implied agreement. The court limited the jury’s use of custom and usage by including the following prerequisites to any implied agreement: (1) that such business or trade usage existed at the time the bid bond was issued; (2) that any preconditions to the obligation imposed by such usage had been fulfilled; (3) that each party knew or had reason to know of such trade usage; and (4) that the plaintiff did not know, or have reason to know, that the defendant’s intention was inconsistent with the trade usage.

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Bluebook (online)
514 A.2d 766, 9 Conn. App. 30, 1986 Conn. App. LEXIS 1123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-f-pace-sons-inc-v-travelers-indemnity-co-connappct-1986.